Gender has commonly been neglected in the prevailing interpretation of the 1951 Convention Relating to the Status of Refugees. However, gender can play an important role in shaping experiences of persecution.

SUGGESTED READING

Convention Relating to the Status of Refugees, 189 UNTS 151 (entered into force on 22 April 1954).

A Roberts, Gender and Refugee Law (2002), 22 Australian Yearbook of International Law 160, 164

The importance of gender in the refugee context: Women may be targeted because they are political activists, community organisers, members of women’s movements or persevere in demanding that their rights or those of their relatives or community members are respected. Moreover, however, the experiences of women often differ significantly from those of men because women’s political protest, activism and resistance may manifest itself in different ways.

Gender-specific forms of persecution: Discussion of practical examples of persecution which include, but are not limited to Marriage-related harm; Violence within the family or community; Domestic slavery; Forced abortion; Forced sterilisation; Trafficking; Female genital mutilation; Sexual violence and abuse.

Family violence and the definition of a refugee: Applicants who make asylum claims based on family violence have faced difficulties meeting the definition of ‘refugee’ in article 1A(2) of the Refugees Convention—both internationally and in Australia. Although it is generally accepted that instances of family violence can constitute ‘serious harm’, two compounding and interlinking factors have historically excluded victims of family violence from protection under the Refugees Convention. This definition and factors will be briefly analysed and discussed.

Gender-related claims and the public/private dichotomy: Family violence claims have tended to exist within the wider context of gender-specific harm. These types of harms—usually experienced by women—are not afforded protection, because neither gender nor sex is an enumerated Convention ground. Additionally, family violence tends to be perpetrated by non-state actors within private relationships, and such claims have historically been construed as falling outside the bounds of the Refugees Convention, because the state cannot be implicated in the infliction of that harm. Thus, courts have traditionally failed to consider whether such gender-related claims may fall under the ground of a particular social group, or other Convention reasons. This topic involves discussion about the distinction concerning the public/private dichotomy and involving the interpretation of the term ‘persecution’ enshrined in the Refugees Convention.

The role of state responsibility: The issue of state responsibility—in cases where the harm is inflicted by non-state actors for a non-Convention reason—brief introduction to a landmark decision of the High Court: Khawar.

PLANNED LEARNING OUTCOMESBy the end of this course, students should be able to:

In the context of refugee law in Australia, understand the complexity of gender-related cases comprehend that is likely that an Australian court or tribunal would need to be aware about the relevant facts and circumstances, including cultural conditions, before reaching a conclusion that what occurs in another country amounts to persecution by reason of the attitudes of the authorities to the behaviour of private individuals.